7101.04 CHANGE 12, 20 Aug 49 7101.04 Implementing Regulations. For sake of simplicity and brevity comment upon the provisions of ASPR 7101.05 Method of Issuing Changes Amendments here to will be effected by changes to be substituted or added and will be transmitted to field agencies properly identified with accompanying communication. 7101.06 Effective Date of Regulations Unless otherwise specifically provided compliance with the provisions of 7101.07 Regulations applicable to Certain Contracts Which Do or Do Not Involve an Interest in Real Estate a. This subparagraph is applicable to contracts covering transactions for the relocation, abandonment, vacation or alteration of existing highways, railroads, pipe lines and other utilities which involve the acquisition or disposal of real estate or an interest therein. Such transactions will be accomplished in accordance with Section 8, Part I, Chapter V, and the terms and conditions incident there to will be embodied in a written contract to conform generally with ENG Form 1354 or ENG Form 1355. Such contracts will be reviewed for real estate features and legal sufficiency by division real estate and legal branches, respectively; will be entered into subject to approval of the Chief of Engineers and, following such approval, will be distributed in accordance with paragraph 7103.29. All supplemental agreements to such contracts, regardless of monetary amounts involved, which pertain to any change in the real estate features of the contract require the manual approval of the Chief of Engineers in the same manner as the principal contract. As a general policy transactions within the purview of this subparagraph will, whenever practicable, be negotiated on a lump sum basis (ENG Form 1354). In those cases where the lump sum basis is not feasible, the cost reimbursable basis of compensation (ENG Form 1355) may be utilized. Only in those cases where it is clearly shown to be to the best interest of the United States will the Government prepare plans or perform construction in the required relocation. the opinion of the District Engineer the proposed contract as negotiated, is fair and reasonable and is the best obtainable under all the circumstances, the approval above provided for may be expedited by CHANGE 12, 20 Aug 49 To Part I, Chapter VII 7101.07 securing execution by the contractor and the contracting officer, and the assignment of a contract number prior to submission to the Chief of Engineers. However, the District Engineer may, if considered necessary, forward a draft of the proposed contract for review and comment with a suitable statement that assurance has been obtained that the draft is acceptable to the contractor. b. This subparagraph is applicable to contracts or portions thereof which are incident to real estate activities but do not involve the acquisition or disposal of real estate or an interest therein. tracts will be reviewed and distributed by legal branches in division and district offices in accordance with paragraph 7103.29. The responsibility for reviewing and distributing such contracts must not be confused with the responsibility for the letting of such contracts pursuant to formal advertising or the negotiation and administration thereof. Contracts within the purview of this subparagraph include, but are not limited to, the procurement of unspecified garage or storage space, title examination and abstracts, appraisals, services of real estate experts and dismantling and demolition of buildings and improvements. 7101.08 Authority To Contract 2. All agents and officers of the Government are special agents and must look to the law for their authority to bind the Government by contract. b. Private individuals contracting with the Government are presumed to know the laws relating to Federal contracts, but they are not generally aware of the limitations of Government agents, for the reason that in private business they are free to make and adjust contracts at will, and it is therefore especially important that all officers of the Government dealing with contracts and all purchasing officers and agents be familiar with the provisions of these laws. (See sec. 17 of the Contract Settlement Act of 1944.) 7101.09 Appropriations, Statutes Governing Use of, Interpretation a. Funds appropriated for certain purposes will not be applied to other purposes, and vouchers will be so stated as to describe correctly the object for which the money is to be expended. Scrupulous care will be exercised in the disbursement of public funds to the end that the law be strictly observed. The general rule relative to obligating fiscal year appropriations by contracts is that the contract must be made within the fiscal year or other period for which the appropriations is limited; that the signing of the contract must be within such fiscal year or period and that the subject matter must concern a need arising within that fiscal year or period (16 Comp. Gen. 37 and 22 Comp. Gen. 156). CHANGE 1, 28 July 47 To Fart I, Chapter VII 7101.09 c. Funds provided in an annual or other limited appropriation act are not available after its expiration date for the completion of work on a force account basis initiated prior thereto (14 Comp. Gen. 528). d. Construction of appropriation acts.- No act of Congress shall be construed to make an appropriation out of the Treasury of the United States, or to authorize the execution of a contract involving the payment of money in excess of appropriations made by law, unless such act shall in specific terms declare an appropriation to be made or that a contract may be executed (31 U. S. C. 627). e. Application of moneys appropriated.- Except as otherwise provided by law, sums appropriated for the various branches of expenditure in the public service shall be applied solely to the objects for which they are respectively made, and for no others (R. S. 3678;31 U. S. C. 628). f. Expenditures in excess of appropriations; voluntary service forbidden; apportionment of appropriations for contingent expenses or other general purposes.- No executive department or other Government establishment of the United States shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or other obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law. Nor shall any department or any officer of the Government accept voluntary service for the Government or employ personal service in excess of that authorized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property. All appropriations made for contingent expenses or other general purposes, except appropriations made in fulfillment of contract obligations expressly authorized by law, or for objects required or authorized by law without reference to the amounts annually appropriated therefor, shall, on or before the beginning of each fiscal year, be so apportioned by monthly or other allotments as to prevent expenditures in one portion of the year which may necessitate deficiency or additional appropriations to complete the service of the fiscal year for which said appropriations are made; and all such apportionments shall be adhered to and shall not be waived or modified except upon the happening of some extraordinary emergency or unusual circumstance which could not be anticipated at the time of making such apportionment, but this provision shall not apply to the contingent appropriations of the Senate or House of Representatives; and in case said apportionments are waived or modified as herein provided, the same shall be waived or modified in writing by the head of such executive department or other Government establishment having control of the expenditure, and the reasons therefor shall be fully set forth in each particular case and communicated to Congress in connection with estimates for any additional appropriations required on account thereof. Any person violating any provision of this section shall be summarily removed from 7101.09 CHANGE 1, 28 July 47 To Part I, Chapter VII office and may also be punished by a fine of not less than $100 or by imprisonment for not less than one month (R. S. 3679;31 U.S.C. 665). Note. The acceptance of "voluntary service" under R. S. 3679, as amended, supra, contemplates service rendered under circumstances whereby a claim for payment may subsequently be made against the Government. Voluntary service may be accepted if a written statement is obtained that the service rendered will not be made the basis of a claim against the Government for compensation. g. No contracts or purchases unless authorized or under adequate appropriation.- No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriati on adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies, which, however, shall not exceed the necessities of the current year (41 U. S. C. 11). h. No contract to exceed appropriation.- No contract shall be entered into for the erection, repair, or furnishing of any public building, or for any public improvement which shall bind the Government to pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose (R. S. 3733;41 U. S. C. 12). i. Contracting in excess of appropriation prohibited. Whoever, being an officer of the United States, shall knowingly contract for the erection, repair, or furnishing of any public building, or for any public improvement to pay a larger amount than the specific sum appropriated for such purpose, shall be fined not more than $2,000 and imprisoned not more than 2 years (18 U. S. C. 184). j. Advance of public money prohibited.- Except as otherwise provided by law, no advance of public money shall be made in any case. And in all cases of contracts for the performance of any service, or the delivery of articles of any description, for the use of the United States, payment shall not exceed the value of the service rendered, or of the articles delivered previously to such payment. It shall, however, be lawful, under the special direction of the President, to make such advances to the disbursing officers of the Government as may be necessary to the faithful and prompt discharge of their respective duties, and to the fulfillment of the public engagements. The President may also direct such advances as he may deem necessary, and proper, to persons in the military and naval service employed on distant stations, where the discharge of the pay and emoluments to which they may be entitled cannot be regularly effected (R. S. 3648;31 U. S. C. 529). 7101.10 Requisites as to Validity of Contracts a. Elements as to substance. To cons.itute a valid and complete contract there must be certain elements present. There must be an agreement which creates |